The American Jury On Trial

Psychological Perspectives

Saul M. Kassin, Lawrence S. Wrightsman

• Publisher: Taylor & Francis
• Year: 2013
• Print ISBN: 9780367089634
• eBook ISBN: 9781135874650
• Topic: Psicología
• Subtopic: Historia y teoría en psicología

First Published in 1988. More than 3 million Americans are called for jury duty every year. For most people, serving on a jury arouses two feelings: it is both a personal sacrifice and an exciting experience. And where a jury is asked to decide some cases, they make headlines. As a result of trials such as these, the American system of trial by jury faces unprecedented challenges. This volume offers an informed examination of the entire process, from jury selection to the delivery of a verdict. Quoting the experiences and expertise of F. Lee Bailey, William Kunstler, Clarence Darrow, Learned Hand, and many others, ttis book investigates such important factors as pretrial bias, the psychology of evidence, inadmissible testimony, interpreting the law, and what goes on inside the jury room. People often think that any book dealing with the law must be written in 'legalese' but in in this book, Professors Kassin and Wrightsman present their case in an exceptionally readable style. They utilize modern advances in psychology to illuminate the usually hidden world of trial practice and procedure and offer thoughtful possibilities for improving the system.

1

OPENING STATEMENTS

On March 30, 1981, John W. Hinckley, Jr. shot and wounded President Reagan outside the Hilton Hotel in Washington, D.C. Three others were also hit by Hinckley’s gunfire. The shooting was observed not only by scores of live witnesses but also by millions of TV viewers. Hinckley was immediately apprehended, charged with 13 crimes, and tried about a year later. The trial lasted for 7 weeks and included a parade of 6 psychiatric experts who testified about his state of mind prior to the shooting. Then on June 21, after deliberating for 25 hours, the jury returned a verdict of not guilty by reason of insanity. Did that verdict reflect favorably or unfavorably on the American trial jury?

On November 19, 1985, a Texas jury awarded Houston’s Pennzoil Company a staggering $10.53 billion plus interest in its suit against Texaco. In a trial that lasted 17 weeks, Pennzoil charged that, in a bitter takeover fight in 1984, it had reached an “agreement in principle” to purchase 43 percent of the Getty Oil Company at $110 per share. Aware of the deal, Texaco then violated commercial contract laws by secretly outbidding them and acquiring the same stock at $128 per share. Texaco’s defense was based, essentially, on the idea that in the business world an agreement in principle is not considered to be binding. The jury’s award was the largest ever in legal history by a factor of six. It even exceeded the figure in damages estimated by Pennzoil. Again, we ask, did that verdict reflect favorably or unfavorably on the American trial jury?

THE TRIAL JURY: AMBIVALENCE, CONTROVERSY, AND CONFUSION

More than 3 million Americans are called for jury duty every year. Their reactions to it vary considerably. To some, serving on a jury means sacrifices of income, time, and energy. Like paying taxes, it is a duty compelled by the forces of government. To others, it provides a welcome disruption from their daily routine, a source of temporary employment, and even a unique opportunity to exert control over decisions that could determine the fate of individuals, corporations, the government, and society as a whole. For most people, jury service arouses both feelings. It is, at the same time, both a personal sacrifice and a source of excitement.

The ambivalence people feel about serving on juries is matched by a steady flow of mixed reviews about how effectively the system works. Juries now decide more than 300,000 cases every year. Inevitably, they sometimes reach difficult and unpopular decisions while in clear view of the public eye. Look at the John Hinckley jury, for example. The moment its decision was announced, the courtroom full of spectators, journalists, and trial participants fell silent before erupting with noise. They were stunned. Likewise, the public reacted immediately to the verdict with anger and disbelief. In an ABC News poll conducted within 24 hours of the verdict, 75 percent of the viewers sampled felt strongly that it was unjust. Media commentators too were critical, referring to the jury’s acquittal as a “dismaying spectacle,” a “travesty of justice,” and an “insult to common sense.”¹ One writer noted that in the days following their unexpected and unpopular verdict “the jurors might well have felt like Vietnam veterans returning to a country whose distaste for the long war came out as contempt for the soldiers.”²

Was the Hinckley jury’s verdict in error? Were they prejudiced against the government? Did they fail to understand the facts of the case, the expert psychiatric testimony, or the applicable law? As it turned out, those who blamed the jury for their unsatisfying decision were misdirected in their anger. Thus when reporters asked one juror why they had not pronounced Hinckley “guilty but insane,” that juror had to remind them that the jurors were not lawmakers, that they were not provided with that option, and that “not guilty by reason of insanity” was the only available alternative to conviction. On the question of expert testimony, the courtroom battle of psychiatrists revealed a lack of consensus on how Hinckley should be diagnosed, much less the extent of his criminal responsibility. Finally, it turned out that, in compliance with federal law, the judge instructed the jury that the burden was on the government to prove beyond a reasonable doubt that Hinckley was sane. As one juror commented afterward, “we felt locked in by the law.” Another said, “M y conscience had me voting one way, but the law would not allow me to vote that way.”³ Even President Reagan came to understand the jury’s dilemma. In Hollywood, soon after the trial, he commented on the burden of proof by saying, “I f you start thinking about even a lot of your friends, you would have to say, ‘Gee, if I had to prove they were sane, I would have a hard job.’”⁴

The Pennzoil verdict also added fuel to the controversy about juries. When it was first announced, the jury’s $10.53 billion award against Texaco sent shock waves through the business community. The verdict was by far the largest ever. The initial explanations for it varied, but they all had in common the theme that the jury must have failed: It was a “runaway” jury, a jury biased in favor of a home-grown company victimized by a New York-based corporate giant, a jury determined to teach a straight-shooting, Western-style lesson about ethics, and a jury simply unable to understand the complications and nuances of business contract law.⁵ Were these charges valid? Did the Texas jury base its recordbreaking award on factors extraneous to the evidence and the law? The story surrounding this case continues to unfold, so a final evaluation is premature at this point. But it is becoming apparent that this was not just a story about the failures of a civil jury. To be sure, the initial charges are not completely without merit. Posttrial interviews with the jurors revealed that they did show signs of regional bias. But were they biased before the trial or as a result of it? According to at least one observer’s report, Pennzoil’s lawyers were quite effective in their portrayal of the defendant as an outsider. Also, it has since been reported that the first of two judges who managed the trial before becoming ill did not have a sophisticated grasp of the case and made several rulings on the evidence that undermined Texaco’s position. Then it turned out that the second judge admitted, months later, that he may have misinterpreted the law governing the case when he instructed the jury before its deliberations. As he put it, “that can happen to any judge. I mean, none of us are infallible, and that can happen.”⁶

Public criticism of the jury, as in the Hinckley and Pennzoil cases, is nothing new. But it is often like blaming the messenger who delivers the bad news. That is probably to be expected. The jury is an exceptional institution. Where else, after all, is a group of ordinary citizens, strangers to one another, and naive about a case, empowered to make decisions of such consequence on behalf of their community? We would argue that precisely because juries consist of ordinary people brought in on an ad hoc basis, and because they are politically unorganized, without spokespersons, and unrepresented by a machinery of special interest groups, they provide a convenient, though misplaced, target for the frustrations resulting from unpopular decisions. It is all too easy to blame the jury for the failings of lawmakers, prosecutors, defense counsel, judges, court administrators, and the like.

Scholarly debate over juries can be traced about as far back in history as juries themselves. Two sets of arguments motivate the debate. The first is one of simple pragmatics. Critics maintain that the system is a very costly anachronism, consuming human resources and government expenditures in massive doses, that it is burdensome to those called into service, and that it is largely responsible for congestion and delay in the civil courts. Former Chief Justice Warren Burger was especially mindful of these kinds of administrative issues. He is also a particularly vocal critic of juries.

The second set of arguments concerns the more important question of how effective juries are at what they do. Critics contend that the jury, composed, after all, of amateurs, is a decision-making body prone to error. This argument surfaces in two distinct charges. The first is intellectual. It is said that the average person is not smart enough or educated enough to understand, much less decide, technically complex civil cases such as antitrust suits. Jurors are thus unable to follow not only the facts but also the letter of the law as described by the judge. These failures, of course, result in an administration of justice that is uneven and unpredictable. The second charge is related to temperament. Jurors are sentimentalists with bleeding hearts. They are gullible creatures, too often driven by emotion and too easily motivated by prejudice, anger, and pity. In even the flimsiest of cases, it is said, jurors are handily manipulated by appeals for leniency and inflated awards. As one lawyer put it, “Remember those twelve jurors facing you are sons and daughters, brothers and sisters, and mothers and fathers, before they were jurors.”⁷ Based on these arguments, juries are blamed for such evils as the litigiousness of American society, the increased cost of liability insurance, and the failure of the criminal justice apparatus to deter criminals. Mark Twain summarized these criticisms succinctly when he said, “The jury system puts a ban on intelligence and honesty, and a premium upon ignorance, stupidity.”⁸

In response to the various charges, advocates of the institution argue that 12 heads are better than one and that a collective wisdom emerges from the process of deliberation. Also, it is argued that precisely because they are naive and uninformed, jurors—unlike their counterparts on the bench—can approach each trial with a fresh outlook. In a related vein, advocates maintain that it is desirable that juries do not adhere blindly to the letter of the law, that their flexibility is an asset. Rules should be shaped by the idiosyncrasies of the individual case. Besides, part of the jury’s mandate is to represent its community’s social conscience even when it is at odds with the law. As far as the problems of judicial administration are concerned, it is argued that the institution is inherently too valuable for policy to be based on the price tag. Especially in criminal matters, trial by a group of one’s peers is like having a citizen review board that serves as a safeguard against oppressive government and arbitrary law enforcement. Finally, it is argued that jury duty is an important as well as symbolic civic experience. It educates the public and it reinforces its faith in the legitimacy with which justice is achieved in American courtrooms.

With juries arousing so much ambivalence and controversy, it should come as no surprise to learn that the legal system is often thoroughly confused about how they act and, in turn, how they should be treated. As we will see in the coming chapters, juries are viewed simultaneously as partial and impartial, brilliant and stupid, active and passive, compliant and rebellious, conscientious and expedient. These assumptions are not without consequence. Following from them are numerous policy questions: Should jurors be selected on a perfectly random basis or should certain segments of the population be systematically included while others are excluded? How should prospective jurors be questioned in order to determine their suitability for service? Should jurors be encouraged to watch a trial as spectators or as participants? That is, should they be permitted to ask questions or take notes? How should the proceedings be structured in order to ensure that jurors maintain an open mind? Should they be instructed before or after the evidence is presented? What should jurors be told in cases where their values might conflict with the law? And when it comes time to deliberate as a group, should they be guided or left to their own devices? What if they are deadlocked? Again, the court’s answers to these kinds of questions depends on what they assume about human behavior in the jury box. And as we will see, the assumptions they make are often confusing, internally inconsistent, and contrary to psychological theory and research. Often they are just plain wrong.

A PREVIEW: PSYCHOLOGY, LAW, AND THE IDEAL JURY

We tend to think of the jury as a stable, never-changing institution. That is only partly true. To be sure, the right to a trial by jury is protected by the Sixth (criminal) and Seventh (civil) Amendments to the Constitution. But how that jury is defined is another matter altogether. More than ever, through a series of Supreme Court opinions, the character of the American jury is changing.

In a 1970 opinion the Court broke with a 700-year tradition and upheld a Florida defendant’s conviction of robbery by a six-person jury.⁹ Now nearly half of the states’ courts permit the use of smaller juries as a way to cut trial costs. Two years later, the Supreme Court upheld a Louisiana defendant’s conviction on similar charges by a nonunanimous jury whose final guilty vote was 9 to 3. In this unprecedented case the Court declared that states could accept verdicts from previously hung juries based on a three-quarters majority rule.¹⁰ Then in a third major development, in 1969, the Supreme Court hinted that certain civil cases may be too complex to be decided by a group of laypeople.¹¹ Several judges have since used that suggestion to deny otherwise legitimate requests for a jury.¹² Finally, in 1986 the Court resolved two controversial questions concerning how juries are to be selected. It ruled, for the first time, that lawyers could not exclude prospective jurors in a way that systematically discriminates along racial lines.¹³ Then it ruled that prospective jurors could be excluded from capital cases if they indicate an unwillingness to vote for the death penalty—even if they could be impartial when deciding on the defendant’s guilt or innocence.¹⁴ As we discuss in Chapter 2, both of these decisions will have a marked effect on the composition of juries in future cases.

Amidst the persistent debates, mounting cost-related pressures, and the flurry of recent changes, the time is ripe for us to take a long, hard look at this unique institution. Thus we ask the following trilogy of questions: What, specifically, does the legal system expect from its juries, are these expectations met, and, if not, can the courts do anything to improve their performance? In this book we take as a point of departure a simple thesis: that evaluating how juries actually function is a strictly empirical matter. We search for answers not in abstract legal theory and not in trial stories told by judges, lawyers, and journalists, but in the results of systematic research. The various methods through which these research data are gathered and the conclusions they enable us to draw are described later in this chapter.

On a substantive level, we have written this book with three goals in mind. The first is to define and articulate how the legal community thinks its juries should conduct themselves, that is, how it envisions the decision-making process in its ideal state. Litigants are entitled, in abstract terms, to a fair trial. But what does the concept of a fair trial mean in concrete behavioral terms? That is, how must juries perform in order to satisfy that criterion? By looking at Supreme Court opinions, case law, judges’ manuals on trial management, the rules of evidence, and jury instructions, we were able to identify four general sets of ideals. These are described below. Our second objective is to evaluate the extent to which juries can be expected to achieve these goals i...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgments
• 1 Opening Statements
• 2 Pretrial Bias: The Thirteenth Juror
• 3 Voir Dire: Science and Intuition
• 4 Making Sense of the Evidence
• 5 Nonevidentiary Temptations
• 6 Processing the Information
• 7 Interpreting the Law
• 8 Inside the Jury Room
• 9 Controlling the Deliberations
• 10 Closing Arguments
• Court Cases
• Name Index
• Subject Index